This expedited schedule suggests what we might have guessed -- fundamentally the dispute is about the law rather than the facts. Among other potentially important rulings, Judge Young may have to decide whether aggregating headlines and ledes from other websites constitutes copyright infringement or fair use, and whether linking back to a source website for purposes of attribution can be trademark infringement. Needless to say, the answers could have serious implications for the future of online media.

Adding a layer of complexity, the court may not have subject-matter jurisdiction to decide the copyright claims (at least for the time being). GateHouse filed applications for copyright registration of the articles in question with the U.S. Copyright Office on December 19, 2008, but has not yet received certificates of registration. Registration is a prerequisite to filing a copyright infringement action, see 17 U.S.C. § 411(a), but the statute is not clear on whether a pending application for registration is sufficient. Some federal courts say "yes," some say "no," and the First Circuit Court of Appeals has not decided the issue. In the parties' joint motion to set a revised schedule, the New York Times Company indicated that it "takes no position on this issue given the current state of the law," but both parties are anxious to deal with the question before going through the effort and expense necessary to prepare for trial. There was a status conference today at which the parties planned to take up the issue, so maybe we'll have some news on this soon.

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